by Tom Ersin | January 25, 2009

100m

4

100m

[Enhanced regurgitation techniques]

— Feature Article —

The Definition

Two days ago, newly inaugurated President Barack Obama re-established a fundamental American value, one that even John McCain vehemently agrees with: Torture, no matter how you euphemize it, is wrong, and we should never use it.

In embarrassing contrast, Attorney General Alberto Gonzales lamely defended the Bush-Cheney “enhanced interrogation techniques” by saying in 2005, “We are not going to torture, period, … [but] I’m not going to get into a discussion about specific methods of questioning people.”

In 2004 President George W. Bush created the Intelligence Science Board with the hope of defending his administration’s new torture definition. The results of the study reiterated the findings of a 1956 Defense Department report. Bush’s own appointees determined that EIT (including waterboarding) constituted torture, were ineffective, were amateurish, and wasted resources by regularly eliciting false confessions. (Shane, 2007.)

The administration continued to use EIT anyway. Bush and Cheney tried to exempt their use from the law by narrowly redefining torture, sometimes secretly and far out of line with any other accepted international or previous U.S. benchmarks. Their quandary was that torture and ill-treatment of detainees was and is illegal under U.S. and international law, and America has periodically affirmed this throughout the 20th and 21st centuries.

In Part I, Article 3, the 1949 Third Geneva Conventions established rules for the treatment of prisoners of war and defined torture as “cruel treatment … outrages upon personal dignity … humiliating and degrading treatment.” In 1985 the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Part I, Article 1) defined torture as “severe pain or suffering, whether physical or mental.”

The Law

The laws of the United States and the international community are clear: They protect any individual in custody, under any circumstances, from any form of torture, whether the U.S. is in a state of peace, emergency, or war. It does not matter if the individual is a citizen, a noncitizen, or how the government classifies that individual, e.g., unlawful combatant, enemy combatant, security detainee, protected person, enemy belligerent, or prisoner of war. “The prohibition against torture and ill-treatment is absolute.” (“Summary of International and U.S. Law,” 2004.)

This means the definition of torture cannot change with presidential administrations. George and Dick must have missed that memo because immediately after 9/11 they tried to justify harsh interrogation methods and exemption from due process for al-Qaida and the Taliban. The White House argued that these detainees did not wear proper uniforms or represent a recognized country, therefore, they were enemy combatants not entitled to POW status. But Geneva rules contradict this. At minimum, the U.S. never held tribunals in Afghanistan, which are required to determine a prisoner’s legal status. And photographs of U.S. operatives in civilian garb, without proper uniforms, further refuted these exemptions. (Grey, 2006.)

The Bush White House circumvented torture laws in other ways, including “extraordinary renditioning”: transporting detainees to other countries for harsh questioning. Extraordinary renditioning enabled Bush and Cheney to feign compliance with the law while allowing friendly foreign governments to use torture that was legal in their countries. In December 2004, while making his first reference to the subject, President Bush told The New York Times that “torture is never acceptable, nor do we hand over people to countries that do torture.” But April 28, 2005, the president added an important phrase: “We operate within the law, and we send people to countries where they say they’re not going to torture the people.” With the addition of two words, George W. Bush inoculated his administration against renditioning laws. (Grey, 2006.)

The Secret Law

W. was always trying to throw us off the scent. In a December 2004 legal opinion (seven months after Abu Ghraib Prison atrocities were exposed), Bush’s Department of Justice stated publicly that it considered torture “abhorrent.” The president appeared to get it. But two months later his Department of Justice issued another opinion in a secret memorandum. For the first time, it authorized “a combination of painful physical and psychological tactics, including head-slapping, simulated drowning (waterboarding), and frigid temperatures.” The CIA had never before used such harsh methods. (Shane, Johnston, & Risen, James, 2007.)

James B. Comey, deputy attorney general in February 2005, strongly objected to the secret authorization of the so-called combined effects (EIT). Comey was in the process of resigning his position over several other legal disagreements with the White House, and this clinched it for him. He left in August 2005. According to The New York Times, he told colleagues they would be “ashamed” when the secret memorandum eventually became public. (James Comey also courageously stood up to George W. Bush and Dick Cheney in March 2004 as acting attorney general, while John Ashcroft was hospitalized: Comey threatened to resign rather than certify, or reauthorize, what he believed to be illegal National Security Agency activities. Bush backed down.) Unfortunately, for human rights proponents and the law, the Justice Department had too many Alberto Gonzaleses and not enough James Comeys.

But the administration could not keep this torture thing secret indefinitely. The Constitution allows and encourages the Fourth Estate to investigate government dealings. The media can demand access to White House documents to ascertain, “What did the president know, and when did he stop knowing it?” (— thanks to National Lampoon). By December 2005 they modified their strategy and publicly redefined torture again, ensuring, as always, that the latest definition did not include whatever methods the administration was authorizing.

In a Dec. 1, 2005, speech, Attorney General Alberto Gonzales proclaimed, “We are not going to torture, period,” adding that the president was firm on this declaration even if thousands of Americans were about to die and they could be saved by torture-elicited information. Secretary of State Condoleezza Rice publicly stated four days later that the U.S. “does not permit, tolerate, or condone torture under any circumstances.”

Gonzales and Rice forgot to mention that their definition of torture was inconsistent with international standards and violated the U.N. Convention Against Torture. They did not mention that government officials and congressional leaders, including Sen. John McCain (R-Ariz.), had assailed their definition. They did not say that former CIA General Counsel Jeffrey Smith averred in an appearance on ABC’s World News Tonight Dec. 5, 2005, “This administration, early on, defined torture so narrowly that activity could be conducted that everybody else regarded as torture.” Secretary Rice and Attorney General Gonzales forgot to mention that, according to ABC News sources, they could make the no-torture claims because there existed a presidential finding that secretly authorized six so-called enhanced interrogation methods, including waterboarding, which were not included in the administration’s secret definition of torture.

The Memos

The Bush-Cheney administration continued to operate essentially under a definition laid out in several, now infamous, 2002 torture memos. Jay Bybee, a former Department of Justice lawyer, concluded that it was only torture if it “resulted in organ failure, impairment of body function, or death.” John Yoo, a 34-year-old DOJ lawyer, defined torture as suffering commensurate with “death or organ failure.” (Yoo also developed the term enemy combatants, who were exempt from habeas corpus, due process of law, and the Geneva Conventions.) These memos were withdrawn two years later under the harsh light of public scrutiny. But the White House, Defense Department, Justice Department, and military and intelligence officers had already used them to develop guidelines for interrogation policy. Brilliant. (Richardson, 2008.)

In 2004 they struck the remarks from the record but the mindset remained. John McCain says, “torture.” George Bush and Dick Cheney say, “enhanced interrogation techniques.” The United States Constitution says, “nor cruel and unusual punishments inflicted.”

The disturbing, formerly secret interrogation methods used at Abu Ghraib Prison and Guantanamo Bay Detention Center were instituted based upon the suggestions, recommendations, and innuendo put forth by the Bush administration. Shortly after 9/11 the White House began a series of communications with the Department of Justice and the Department of Defense requesting authorization to use interrogation techniques that were possibly inconsistent with American civil and military law and the Geneva Conventions. The White House received this authorization based upon the idea of special circumstances — that under the special circumstances of the unique war on terror, the legal restrictions were not applicable. (Grey, 2006.)

Bush and Cheney developed an unlawful interrogation policy based upon flawed authorization from the DOD and the DOJ. And when agents in the field did cross even the administration’s liberal line, the White House had secured a level of “plausible deniability.”

Plausible deniability is a term coined by aides to President Ronald Reagan in the 1980s. It allowed Reagan to (“honestly”) declare that he was unaware of illegal arms sales to Iran (orchestrated by his staff) for the release of American hostages, the proceeds from which were funneled — illegally — to the pro-American Nicaraguan counter-revolutionary fighters, or “Contras.” This became the scandal known as the Iran-Contra affair. The White House staff did whatever it took to carry out Reagan’s high-level policy objectives (to support the Contras, contrary to Congress’ determination), with an unspoken understanding to withhold from him the details, so he would be able to deny knowledge of the plot.

The Signing Statement

In late December 2006, President Bush succumbed to public pressure and signed a bill he had previously vowed to veto: the U.S. Senate Department of Defense Appropriations Act, 2006, which contained the Detainee Treatment Act of 2005, aka the McCain Amendment. This amendment contained the language prohibiting “cruel, inhuman, and degrading treatment” of prisoners or detainees, which was nearly identical to Geneva Conventions wording. At first it seemed to be a major setback to the president’s interrogation policy. What went unnoticed, however, until after the New Year’s weekend was the posting of a signing statement accompanying the original act:

“The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the president … as Commander in Chief, … [which] will assist in achieving the shared objective of the Congress and the president … of protecting the American people from further terrorist attacks.”

A signing statement is an official document issued by a president to clarify his (or her) interpretation of a bill he disagrees with, even though he is signing it. But many legal experts believe President Bush used this signing statement, along with others, to exempt his administration from enforcement of the law he just signed — effectively nullifying it. Moreover, I know you are but what am I? A senior administration official, speaking anonymously about the McCain amendment, said President Bush reserves the right to use whatever interrogation methods he deems necessary. The official qualified this by saying that the president has two obligations: to uphold the law and to protect national security. He states the administration is not expecting these two obligations to conflict but recognizes they could — in which case, national security must take precedence. (Savage, 2006.)

In other words, his signing statement gave President Bush the authority to operate on a sliding scale. If the government perceived the prisoner’s information as weak, they would not use harsh techniques. If they suspected he or she had knowledge deemed important, all limitations on torture and ill-treatment were suspended.

Begging the Question

This begs the question: How little did the Bush-Cheney administration respect law and precedent? The U.S. declared waterboarding illegal throughout the Vietnam War. America classified enhanced interrogation techniques as illegal violations of international standards when the Soviets used them during the Cold War. Furthermore, America willingly signed the Geneva Conventions agreements and had upheld their principles in all previous armed conflicts. One obvious reason was to protect American captives from similar treatment. Moreover, harsh treatment of enemy prisoners motivates and hardens enemy fighters and creates additional support for them from previously neutral parties. The Bush White House ignored all of this.

If George Bush and Dick Cheney believed that enhanced interrogation techniques did not constitute torture and were legal, why did they continuously obscure them? Granted, a measure of secrecy is necessary to fight terror. But informing a bipartisan panel of high-ranking members of Congress about the government’s actual policy and actions would not have compromised the policy. Additionally, the administration could have consulted this panel about legal concerns. The government could have established a court similar to the FISA (Foreign Intelligence Surveillance Act) court to review legalities confidentially. They also could have publicly discussed the many non-secret aspects of torture policy. But W. knew better. He continued to obfuscate EIT because he knew they constituted illegal torture. And this obfuscation caused dramatic problems in the field.

“No wonder the troops are confused. If … Attorney General [Gonzales] won’t say what constitutes torture, then how is the night shift at Abu Ghraib supposed to know?”

Defense Department consultants stated in a 1956 report that Soviet methods of interrogation constituted torture and routinely produced false information. In 2004 the president’s own Intelligence Science Board reasserted those findings and added that the euphemistically labeled enhanced interrogation techniques, adopted from Soviet Cold War methods, were amateurish and ineffective. Upon hearing that Bush and Cheney had repackaged KGB torture methods as administration-authorized EIT, psychiatrist and government torture consultant Charles Morgan asked, “How did something used as an example of what an unethical government would do, become something we do?”

Here is how they did it: They repudiated the internationally accepted Geneva Conventions and the U.N. Convention Against Torture. They narrowly redefined torture as only those methods resulting in “organ failure, impairment of body function, or death,” then publicly proclaimed, “We never torture.” They suspended habeas corpus and Eighth Amendment prohibitions against cruel and unusual punishment for all detainees by redefining prisoner of war. And if the redefinitions didn’t hold up, they had presidential signing statements to exempt themselves from the laws they disagreed with.

Right and wrong can rarely be measured in absolutes. The metrics we do have are critical thought and the scientific method, rational interpretation of the U.S. Constitution and the law, honest civil discourse, and basic human decency. By employing these, our society attempts to administer justice. George W. Bush and Dick Cheney consistently ignored these principles during their war on terror. They conducted that war illegally by manipulating the law with a myopic disregard for the treatment of future U.S. captives. The Bush-commissioned Intelligence Science Board reaffirmed the illegality, ineffectiveness, and resource-wasting aspects of enhanced interrogation techniques. But the Bush-Cheney administration continued to rationalize and employ them.

Torture, as properly defined by the U.S. and the U.N., does not produce good intelligence. It is unlawful by any neutral reading. The United States government should not permit it — ever. ■

_____________________________________________References:

Grey, Stephen; Ghost Plane: The True Story of the CIA Torture Program; 2006.
Richardson, John H.; “Is John Yoo a Monster?”; Esquire; June 2008.
Savage, Charlie; “Bush Could Bypass New Torture Ban: Waiver Right Is Reserved”; The Boston Globe; 1/4/2006.
Shane, Scott; “Soviet Style ‘Torture’ Becomes ‘Interrogation’”; The New York Times; 6/3/2007.
Shane, Scott & Johnston, David & Risen, James; “Secret U.S. Endorsement of Severe Interrogations”; The New York Times; 10/4/2007.
“Summary of International and U.S. Law Prohibiting Torture and Other Ill-Treatment of Persons in Custody”; Human Rights Watch; 5/24/2004.